Legal expert makes case for Congress to bar Trump from running again if he’s not indicted

In a column for Politico Magazine, a University of Baltimore law professor urged Congress to step in and make sure that Donald Trump can’t run for office again on the off-chance he is not indicted on criminal charges that could derail a 2024 presidential run.

According to legal expert Kimberly Wehle, Congress has the ability in place to bar Trump from a third presidential run and should seriously consider it in light of his attempts to overturn the 2020 election where he lost decisively to now-President Joe Biden.

As Wehle wrote, the House Jan 6th committee’s Rep. Liz Cheney (R-WY) has indicated “that the committee has an overarching goal of ensuring Trump never occupies the Oval Office again — one that might be achieved by different means.”

In a conversation with CBS’s Margaret Brennan last weekend, Cheney referred to “legislative activity going forward,” which Whele suggests may mean that lawmakers have a back-up plan for Trump.

“Cheney’s reference to ‘legislative activity’ is telling. While many have expressed frustration that Attorney General Merrick Garland has not yet charged anyone who might have fomented the riot from inside the government, Cheney’s remarks remind us that Congress has a powerful tool at its disposal to hold former officials such as Trump accountable. And it might be more effective than any potential criminal prosecution. It’s legislation,” she wrote. “What Cheney and her congressional colleagues might have in mind is the 14th amendment, which was ratified in 1868 after the Civil War to prevent former Confederates from holding state or federal office and thus disrupting the fragile Reconstruction effort.”

Noting that Rep. Jamie Raskin (D-MD) has also hinted at a legislative approach, calling its use “a live proposition,” the attorney suggested “it’s worth revisiting this legislative avenue, and whether the damning revelations already unearthed by the committee’s investigation have sufficiently changed the political landscape within Congress that passing such a law might now be possible — maybe even preferable.”

Quoting Section 3 of the amendment that states, “No person shall … hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same,” and then Section 5 that adds, “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article,”

Wehle then explained, “This is important.”

“It gives Congress express constitutional authority to pass legislation implementing a ban on insurrectionists holding office, rather than requiring Congress to fall back on other powers — such as its power over interstate commerce — that are more general and thus less focused on the task at hand,” she elaborated. “For example, Congress’ power to gather information as part of its legislative efforts is not express but implied in the Constitution, thus opening up for debate the Jan. 6 Committee’s subpoena power. But Section 5 is crystal clear: Congress can pass legislation to keep anyone who engaged in insurrection or rebellion out of public office.”

The law professor then provided a roadmap that Congress can follow.

In a column for Politico Magazine, a University of Baltimore law professor urged Congress to step in and make sure that Donald Trump can’t run for office again on the off-chance he is not indicted on criminal charges that could derail a 2024 presidential run.

According to legal expert Kimberly Wehle, Congress has the ability in place to bar Trump from a third presidential run and should seriously consider it in light of his attempts to overturn the 2020 election where he lost decisively to now-President Joe Biden.

As Wehle wrote, the House Jan 6th committee’s Rep. Liz Cheney (R-WY) has indicated “that the committee has an overarching goal of ensuring Trump never occupies the Oval Office again — one that might be achieved by different means.”

In a conversation with CBS’s Margaret Brennan last weekend, Cheney referred to “legislative activity going forward,” which Whele suggests may mean that lawmakers have a back-up plan for Trump.

RELATED: Riot committee ‘aggressively’ shifts focus to criminal conspiracy charges against Trump and GOP lawmakers: report

“Cheney’s reference to ‘legislative activity’ is telling. While many have expressed frustration that Attorney General Merrick Garland has not yet charged anyone who might have fomented the riot from inside the government, Cheney’s remarks remind us that Congress has a powerful tool at its disposal to hold former officials such as Trump accountable. And it might be more effective than any potential criminal prosecution. It’s legislation,” she wrote. “What Cheney and her congressional colleagues might have in mind is the 14th amendment, which was ratified in 1868 after the Civil War to prevent former Confederates from holding state or federal office and thus disrupting the fragile Reconstruction effort.”

Noting that Rep. Jamie Raskin (D-MD) has also hinted at a legislative approach, calling its use “a live proposition,” the attorney suggested “it’s worth revisiting this legislative avenue, and whether the damning revelations already unearthed by the committee’s investigation have sufficiently changed the political landscape within Congress that passing such a law might now be possible — maybe even preferable.”

Quoting Section 3 of the amendment that states, “No person shall … hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same,” and then Section 5 that adds, “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article,”

Wehle then explained, “This is important.”

“It gives Congress express constitutional authority to pass legislation implementing a ban on insurrectionists holding office, rather than requiring Congress to fall back on other powers — such as its power over interstate commerce — that are more general and thus less focused on the task at hand,” she elaborated. “For example, Congress’ power to gather information as part of its legislative efforts is not express but implied in the Constitution, thus opening up for debate the Jan. 6 Committee’s subpoena power. But Section 5 is crystal clear: Congress can pass legislation to keep anyone who engaged in insurrection or rebellion out of public office.”

The law professor then provided a roadmap that Congress can follow.

“The most conspicuous option would be to pass a law creating a civil cause of action enabling, say, a competing candidate to file suit seeking an injunction against Trump if he chooses to run for office. In that lawsuit, Trump’s role in Jan. 6 presumably would be litigated under criteria that Congress would establish in the legislation,” she wrote before cautioning, “To be sure, the legal nuances and hurdles of potential legislation are impossible to probe in the abstract, and court challenges to any legislation would assuredly follow. Moreover, Congress must be exquisitely careful not to craft legislation that can be used as political ammunition to keep legitimate candidates off the presidential ballot.”